...contrary to what is claimed in the Levy report, it is manifestly clear that the West Bank is occupied by Israel...Furthermore, concerning the settlements in the West Bank, it has to be emphasized that Article 49 (6 ) of the Fourth Geneva Convention, which prohibits a state from transferring parts of its own civilian population to territory it occupies, does not merely prohibit the occupying state from forcefully transferring parts of its population; it also prohibits any action by the occupier which facilitates such transfer. The ICRC commentary on the Fourth Geneva Convention makes clear that Article 49 (6 ), like the convention as a whole, aims to protect the local population in the occupied territory and not the population of the occupying state. Furthermore, international humanitarian law prohibits any action by an occupying power aimed at altering the intrinsic characteristics of the occupied territory, including any measures that affect its demographic, cultural or social composition.
My comment left there:
This is a stupid article. Of course a territory can be occupied, but legally or illegally is the question. I am at the present occupying the chair I am seated in. So what? What Schaerer is trying to prove, that Israel is engaged in "illegality", is a flop. Without referring to the history of the claims to sovereignty, one would never know that what happened in 1939, i.e., the illegal move by Gt. Britian to alter the terms of the Mandate by the League of Nations, followed by the Arab rejection of Partition, to the annexation of Judea & Samaria by Jordan, the ongoing terror since 1947 and the threat of war in 1967, which all lead to a legal justification for Israel to occupy Judea and Samaria, to facilitated "close Jewish settlement" therein, including the use of "stae and waste lands". There is no crime of "settlement" involved and the defensive war Israel was required to wage gives Israel all rights to be in the area. The throw-in of "transferring" is ridiculous as Jews lived in the areas of Judea, Samaria and Gaza for centuries prior to 1947-49 and it was only because of a policy of ethnic cleansing practiced by Arabs during the Mandate and the War of Independence - Schaerer knows of those illegal acts, does he not? - that Jews were not there in 1967.I think the Red Cross should be red-faced after this travesty of law and history.
We Jews are returning, not transferring oursleves or being transferred.
^
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Did the Red Cross protest the wanton destruction of synagogues and the Jewish cemetery on the Mount of Olives, during the 19-year occupation of the East Jerusalem by the Jordanians (as well as the occupation of Jewish owned land in areas such as Neve Yaakov, Gush Etzion, etc.)? If not, then it certainly has no claim to be able to judge Israel over settlement in the ancient homeland of the Jewish people.
Unless I'm misreading this article, it's hopelessly confused. There appear to be two debates that he's - with purpose - tangling up:
(1) The status of the West Bank, which is cashed out as a debate between Levy/San Remo and Schaerer/Hague 1907. The question is, does Israel have sovereignty over the West Bank or whether it is in belligerent occupation of the West Bank. That sounds complicated. Someone should really hash that out.
(2) The totally separate question of whether, assuming Levy is wrong, Israel's belligerent occupation of the West Bank means that it is bound by Article 49(6) of the Fourth Geneva Convention from "any action... which facilitates" (his word, my emphasis) having Jews settle the West Bank. The result would be that "Israeli settlements in the West Bank are unlawful... based entirely on the relevant provisions of international humanitarian law." Everyone here knows that the anti-Israel side has spent the last decade trying to make settlements into a "human rights" issue. It's a difficult task, because they're wrong. Apparently the newest tactic is going to be to just assert that "facilitating" Jewish settlement is illegal under 49(6) of Geneva IV. In some ways this is an old debate. What's new is the assertion that it's just a fucking fact that it's illegal (read his language: "it has to be emphasized", "based entirely", etc - it's pure question begging, published as international law).
Remember that the relevant clause is 49(6) of Geneva IV:
"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."
...
...I'm going to belabor this point one more time, because it becomes important. The overarching question is whether letting Jews voluntarily settle in the West Bank counts as deportation or transfer. Israel has long claimed that voluntary movement can't fall under "deportation" or "transfer", and that in any case Art 49 is broadly meant to prevent displacement of indigenous populations (which is actually the ICRC interpretation as well) and that's not happening. Since this line of argument just seems flat out compelling, the other side has now moved the goalposts to say that even "facilitating" transfer is illegal, and so settlements are a matter of human rights law. That's what Schaerer is up to.
There are two lines of answers to this new attempt to lean on "facilitate"
[A] No it's not illegal to "facilitate" settlement as a human rights matter. He's just making that up.
(1) I'm pretty sure he's making that up. He certainly doesn't say where he gets that from. He waves his hand at the ICRC commentary on Article 49, but it doesn't say anything like that either (http://www.icrc.org/ihl.nsf/full/380) In fact it says almost the opposite, which is that it's weird to talk about moving your own population when you're talking about protecting displaced persons. He hasn't met the minimum threshold of even informing people where he's getting that. It's likely that he can't meet that burden, and is just hoping that - now that it's been published in Ha'aretz - the anti-Israel echo chamber will pick it up until it becomes fact.
(2) If he isn't just making it up, then it'll be a clear example of whether international law has been politicized. Very obviously the clause was never meant to be applied in that way. If it has been applied to Israel in that way, it's more evidence that international law isn't neutral but is applied unfairly to Israel.
[B] "Facilitating" Jewish settlement of the West Bank is explicitly advocated in the Mandate
(1) This argument is, I think, rhetorically devastating. Whereas "facilitate" doesn't show up anywhere in Art 49, it does show up in the Mandate: "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there." These guys are very explicitly trying to reverse black letter international law, which calls for the facilitation of Jewish settlement into the West Bank, into something that calls for a ban on facilitating Jewish settlement in the West Bank.
(2) Even acknowledging tension between the Mandate and Art 49 on facilitating Jewish settlement, which there isn't but let's pretend there is, at a minimum, when you weigh the explicit rights outlined in the Mandate with the vague application of Art 49, you end up with a situation where legally "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there." That position is not new to the Levy report. The Israeli government has been asserting it since the mid-1990s (http://is.gd/E4wZ0r). It was accepted for decades. What is new is that after 10 years of self-referential ricocheting by an international anti-Israel network of humanitarian NGOs, think tanks, and media outlets, an ICRC chief feels comfortable blandly asserting the exact opposite as fact.
It's breathtaking evidence of how these guys just keep asserting anti-Israel propaganda until it's mainstream enough to be asserted without evidence. Settlements are not a human rights issue. They've never been a human rights issue. After 10 years of trying to make them a human rights issue, the best they can do is say that Art 49 bans "facilitating" settlements, which it doesn't and if it did wouldn't be as on-point as the Mandate's explicit encouragement of "facilitation." And yet here we are.
the non-existence of "facilitation" as geneva crime is emphasized by
the addition of words "directly or indirectly transfer" in subsequent
treaties which israel didn't sign - they were trying to broaden
meaning, highlight that 49(6) itself sez no such thing
I
The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the “Mandate for Palestine” of the League of Nations.
This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day. Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.
The International Court of Justice reaffirmed the meaning and validity of Article 80 in three separate cases:
ICJ Advisory Opinion of July 11, 1950: in the “question concerning the International States of South West Africa.”33
ICJ Advisory Opinion of June 21, 1971: “When the League of Nations was dissolved, the raison d’etre [French: “reason for being”] and original object of these obligations remained. Since their fulfillment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. ... The International Court of Justice has consistently recognized that the Mandate survived the demise of the League [of Nations].”...
II
...ICJ Advisory Opinion of July 9, 2004: regarding the “legal consequences of the construction of a wall in the occupied Palestinian territory.”35
In other words, neither the ICJ nor the UN General Assembly can arbitrarily change the status of Jewish settlement as set forth in the “Mandate for Palestine,” an international accord that has never been amended.
All of western Palestine, from the Jordan River to the Mediterranean Sea, including the West Bank and Gaza, remains open to Jewish settlement under international law.
Professor Eugene Rostow concurred with the ICJ’s opinion as to the “sacredness” of trusts such as the “Mandate for Palestine”:
“‘A trust’ – as in Article 80 of the UN Charter – does not end because the trustee dies ... the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948. ... They are parts of the mandate territory, now legally occupied by Israel with the consent of the Security Council.”36
The British Mandate left intact the Jewish right to settle in Judea, Samaria and the Gaza Strip. Explains Professor Rostow:
“This right is protected by Article 80 of the United Nations Charter, which provides that unless a trusteeship agreement is agreed upon (which was not done for the Palestine Mandate), nothing in the chapter shall be construed in and of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.
“The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’
“Under international law, neither Jordan nor the Palestinian Arab ‘people’ of the West Bank and the Gaza Strip have a substantial claim to the sovereign possession of the occupied territories.”
The Rome Statue for the ICC codifies the "facilitating" argument as a crime. The Arab states got this put into the statute at the last minute and this was the main reason Israel did not ratify the treaty.
Art 8(b)
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
I think it is almost a sure bet that once "Palestine" gets non-member State status at the GA in December they will reapply to the ICC and the court is going to take up the settlements issue. The Court won't even need to get into the wording of Geneva b/c the much broader definition is in the ICC statute.
It is absolutely not true that the question is whether Israel has sovereignty over the West Bank or whether it is a belligerent occupier of the West Bank. By some theories (not mine), it is possible that Israel both has sovereignty and is a belligerent occupier. It is certainly possible for Israel to both not have sovereignty and not be a belligerent occupier. Belligerent occupation is not a sovereign status. (It is interesting that the author concedes that if Israel has sovereignty it is not a belligerent occupier. This forces the author to insist that Israel does not have sovereignty, which is far from clear.)
The 4th Hague Convention is quite clear.
This is the relevant passage:
“SECTION III
MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE
Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.”
If the West Bank is not part of a sovereign state, or indeed of any state, then that part of the Hague convention does not apply.
How come it has taken the ICRC so long to respond to the Levy report? They obviously had to look in their archives to dig out the so called material to justify what they quoted.
Lets remind them once and for all that the let the Nazis round up Jews and murder 6000000 whilst they turned a blind eye.
THey have never had access to any IDF soldiers captured or abducted in the last 30 plus years be it the MIA's from Sultan Yaacob, Ron Arad, Gilad Schalit etc.
They refuse to recognise Magen David Adom symbol on the ambulances.
THey show complete contempt for the laws of the State of Israel when the head of the ICRC delegation in Jerusalem constantly parks her official vechicle on forbidden areas of the capital's roads and does it with impunity - even when caught - saying have you never parked illegally!
The founder of the ICRC and the Geneva Convention, Henri Dunant, must be turning in his grave.
Dunant, who would later become a close confidante of Theodor Herzl, wrote an open letter in 1866 in which he proposed the establishment of an Eastern International Society which would colonize the more fertile valleys of the Holy Land:
"Palestine, as known, only wants human labour in order to produce abundantly: it is one of the most remarkable and fruitful countries on the globe: products of all latitudes are to be met with there, and emigrants from Europe find there the climate of their country. Commerce and private industry completing the work of agriculture, will draw hither in numbers merchants, colonists and capitalists. This resurrection of the East, uniting with the new rise of religious sentiment, will be aided by the co-operation of Israelites, whose valuable qualities and remarkable aptitudes cannot but prove very advantageous to Palestine.
"Having established commercial undertakings at Constantinople and other cities of the Turkish Empire, the Society will construct at Jaffa a port and a good road, a railway from this city to Jerusalem. The territory through which the railway runs should be granted by Turkey to the Society, which might sell it to Israelitish families. These in their turn would create colonies and make them prosperous, with the help and the labour of those of their Eastern brethren whose love for their ancient country has maintained itself as ardently as formerly. Special committees might at their cost send Israelitish emigrants from Morocco, Poland, Moldavia, Wallachia, the East, Africa, etc.
Dunant was one of only a handful of gentiles to attend the First Zionist Congress – and it was Dunant and Hechler whom Herzl called Christian Zionists – the first recorded instance of the term being used.
I'm pleased that there are arguments to refute the op-ed in Ha'aretz, but how do we get these out to the rest of the world? If the media are not prepared to give editorial space, perhaps we need to buy advertising space and fill it with our message. Or does anyone else have some bright alternative idea?
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